Sebaganga & another v Republic (Criminal Appeal E017 of 2023 & E021 of 2024 (Consolidated)) [2024] KECA 1297 (KLR)

The Court applied Mbelle's three-point test: that the voice was the accused's, that the witness was familiar with it and recognized it, and that conditions eliminated mistake. PW1's prior acquaintance with both appellants, their close proximity during the rape, and the compelled utterances satisfied the test. Single-witness recognition evidence is not inherently weakened, but must be scrutinized with care per Wamunga. The identification parade using the same members was not irregular per Boniface Wahome Maina.

The Court noted it cannot reopen concurrent findings of fact on second appeal under section 361 of the Criminal Procedure Code. It only satisfied itself that the learned Judge correctly upheld the trial court's findings and that the disjunctive elements in Johana Ndungu and Oluoch - being armed, in company of others, or using violence - were established by the evidence of the armed gang attack and killing.

The Court held that the medical report on the victim is what counts; examination of the accused days later proves nothing. PW1's testimony was clear and corroborated by medical evidence of injuries, and in any event the proviso to section 124 of the Evidence Act allows conviction on the victim's testimony alone where the court is satisfied she is telling the truth. Ingredients of penetration and lack of consent per section 3(1) of the Sexual Offences Act and Republic v. Oyier were met.

Following Erick Otieno Meda and R. v. Sukha Singh, an alibi must be raised early to allow the prosecution to inquire into it. The appellants only raised alibi at the defence hearing, denying the prosecution the chance to test it by cross-examination, and called no witnesses to corroborate it. The prosecution's proof of recognition beyond reasonable doubt therefore stood, and the learned Judge was correct to reject the defence.

Sentence severity is essentially a question of fact outside the second-appeal mandate under section 361(1)(a). No counsel submitted on it. The Court agreed with the High Court's weighing of mitigating and aggravating factors, held the reduced sentence neither illegal nor unlawful, and found it not manifestly excessive, following Joseph Muerithi Kanyita and MGK v Republic.